Citation Nr: 1514366
Decision Date: 04/02/15 Archive Date: 04/09/15
DOCKET NO. 05-18 009A ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Cleveland, Ohio
THE ISSUES
1. Entitlement to an initial rating in excess of 20 percent for lumbosacral strain with degenerative joint and disc disease.
2. Entitlement to service connection for a left knee disability, to include as secondary to service-connected disabilities.
3. Entitlement to a total disability rating for compensation services based on individual unemployability (TDIU).
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESSES AT HEARING ON APPEAL
The Veteran and E.B.
ATTORNEY FOR THE BOARD
J. Seay, Counsel
INTRODUCTION
The Veteran served on active duty from February 1972 to May 1972.
These matters come before the Board of Veterans' Appeals (Board) on appeal of rating decisions dated in June 2004 (lumbosacral strain with degenerative joint and disc disease) and June 2010 (left knee) by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The June 2004 rating decision, in pertinent part, granted service connection for lumbosacral strain with degenerative joint and disc disease and assigned an initial rating of 20 percent effective October 8, 2003. The June 2010 rating decision, in pertinent part, denied entitlement to service connection for a left knee disability. The October 2011 Board decision determined that the issue of entitlement to a TDIU was raised pursuant to Rice v. Shinseki, 22 Vet. App. 447, 455 (2009).
In October 2011, the Board remanded the issues listed on appeal for additional development, to include the issue of entitlement to service connection for a bilateral hip disability. An August 2013 rating decision granted entitlement to service connection for right hip degenerative joint disease and granted entitlement to service connection for left hip degenerative joint disease. The Veteran did not appeal the decision. This action represents a total grant of the benefit sought with respect to this issue and the issue is no longer before the Board. See Grantham v. Brown, 114 F.3d 1156, 1159 (Fed. Cir. 1997).
In February 2006, the Veteran testified during a local hearing before a Decision Review Officer (DRO). In August 2011, the Veteran testified during a video conference hearing before the undersigned Veterans Law Judge (VLJ). Transcripts of the hearings are associated with the claims folder.
The issues of entitlement to service connection for a left knee disability, to include as secondary to service-connected disabilities and entitlement to a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).
FINDING OF FACT
In consideration of the Veteran's functional impairment and loss during periods of flare-ups, the evidence is in equipoise as to whether the Veteran's lumbosacral strain with degenerative joint and disc disease is comparable to limitation of motion to 30 degrees or less.
CONCLUSION OF LAW
The criteria for an initial rating of 40 percent, but no higher, for lumbosacral strain with degenerative joint and disc disease, have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002 & Supp. 2014); 38 C.F.R. §§ 3.159, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242 (2014).
REASONS AND BASES FOR FINDING AND CONCLUSION
VA's Duties to Notify and Assist
Pursuant to the Veterans Claims Assistance Act of 2000 (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2014). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). A December 2003 VA notice letter advised the Veteran of the evidence required to substantiate a claim for service connection and an August 2004 VA notice letter advised the Veteran of the evidence to support a claim of entitlement to an increased rating. A March 2006 letter advised the Veteran of the assignment of disability ratings and effective dates. The March 2006 letter was sent after the initial adjudication of the claim and the claim was readjudicated by a Supplemental Statement of the Case. Any timing error has been cured. See Prickett v. Nicholson, 20 Vet. App. 370, 377-78 (2006) (VA cured failure to afford statutory notice to claimant prior to initial rating decision by issuing notification letter after decision and readjudicating claim and notifying claimant of such readjudication in the statement of the case).
Further, in this case, the Veteran is appealing the initial rating assignment. Once service connection has been granted, the context in which the claim initially arose, the claim has been substantiated; therefore, additional notice under § 5103(a) is not required because the initial intended purpose of the notice has been fulfilled, so any defect in the notice is not prejudicial. Goodwin v. Peake, 22 Vet. App. 128 (2008); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Rather, thereafter, once a notice of disagreement (NOD) has been filed, for example contesting a downstream issue such as the initial rating assigned for the disability, only the notice requirements for a rating decision and statement of the case (SOC) described in 38 U.S.C.A. §§ 5104 and 7105 control as to the further communications with the Veteran, including as to what evidence is necessary to establish a more favorable decision with respect to downstream elements of the claim. 38 C.F.R. § 3.159(b)(3). The Veteran was provided the required SOC discussing the reasons and bases for not assigning a higher initial rating and cited the applicable statutes and regulations. The notice requirements have been met.
The duty to assist the Veteran has also been satisfied in this case. All identified medical treatment records have been obtained and associated with the claims folder. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In accordance with the Board's October 2011 remand, the AOJ obtained VA medical treatment records from the Dayton VA Medical Center (VAMC) and the Chillicothe VAMC. See Stegall v. West, 11 Vet. App. 268 (1998). The Board acknowledges that a report of general information dated in July 2013 indicated that the Veteran receives treatment at a private facility, Sycamore Pain Management, with respect to his service-connected disability. The report of general information also indicated that a VA Form 21-4142, Authorization and Consent to Release Information to VA, was mailed to the Veteran and that VA was to await receipt of the VA Form 21-4142. The record does not include a copy of the correspondence sent to the Veteran (VA Form 21-4142); however, there is a "presumption of regularity" under which it is presumed that government officials have properly discharged their official duties. Clear evidence to the contrary is required to rebut the presumption of regularity. Ashley v. Derwinski, 2 Vet. App. 307 (1992) (with respect to procedures at the Board); see also Mindenhall v. Brown, 7 Vet. App. 271 (1994) (applying the presumption to procedures at the RO). Here, there is no evidence presented to rebut the presumption of regularity. In addition, the Veteran otherwise had an opportunity to submit a VA Form 21-4142 for his private medical treatment records, but did not do so. A February 2012 VA notice letter noted enclosure of a VA Form 21-4142, advised the Veteran to use a VA Form 21-4142 for each doctor or hospital where he was treated, and to send any records related to his claimed condition. The Veteran only identified treatment at the Dayton VAMC on the provided VA Form 21-4142, which have been obtained and associated with the claims folder. VA's duty to assist is not a one-way street. If the Veteran wishes help, he cannot passively wait for it in those circumstances where his own actions are essential in obtaining the putative evidence. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). As a result, the VA fulfilled its duty to assist in obtaining evidence. 38 U.S.C.A. § 5103A(b); 38 C.F.R. § 3.159(c).
The Veteran has also been afforded VA medical examinations in connection with his service-connected lumbosacral strain with degenerative joint and disc disease. To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The examiners either elicited a medical history that is consistent with the record and/or reviewed the claims folder, performed physical examinations of the Veteran, considered the Veteran's reported symptomatology, and provided relevant medical information necessary to address the rating criteria in this case. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board notes the Veteran's contentions in an October 2010 statement. He stated that the VA examiner forced him forward by placing her hand on the back of his neck and her legs were between his legs to force the movements, and reported that he did flexion that he did not perform. There is no objective indication that the corresponding examination report was not credible or competent, or that the VA examination was cursory or inadequate. See Sickels v. Shinseki, 643 F.3d 1362, 1365-66 (Fed. Cir. 2011) (holding that although the Board is required to consider issues independently raised by the evidence of record, the Board is still "entitled to assume" the competency of a VA examiner and the adequacy of a VA opinion without "demonstrating why the medical examiners' reports were competent and sufficiently informed"); see also Rizzo v. Shinseki, 580 F.3d 1288, 1290-91 (Fed. Cir. 2009) (holding that the Board is entitled to assume the competency of a VA examiner unless the competence is challenged). Id. Indeed, even when the claimant challenges a VA examination or opinion, the Board may assume the competency of the VA medical examiner, including nurse practitioners, as long as, under 38 C.F.R. § 3.159(a)(1), he or she is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. See Cox v. Nicholson, 20 Vet. App. 563 (2007). The May 2010 was conducted by a physician. Further, after the examination, the Veteran was provided an adequate VA medical examination in March 2012 in accordance with the Board's October 2011 remand. The report responded to the remand directive in that the VA examiner discussed forward flexion, whether ankylosis was present, whether the Veteran had radiculopathy, and whether the Veteran's disability exhibited weakened movement, excess fatigability, or incoordination. The examiner was asked to express an opinion as to the degree to which pain could significantly limit functional ability during flare-ups or when the Veteran used his back repeatedly over a period of time. The examiner was unable to respond without resort to mere speculation. The Board finds that a remand for the purposes of elaboration as to why an opinion could not be stated is not required.
Review of the VA medical treatment records document the Veteran's reported flare-ups as the Veteran stated that he seeks a Tramadol injection when he experiences a flare-up. Some of the corresponding VA medical treatment records show flexion findings in connection with these visits. The records do not reflect any findings that are 30 degrees or less. Further, the Board has assigned a higher initial rating of 40 percent on the basis of functional impairment, to include during periods of flare-ups. The Board finds that another remand is not required as the evidence demonstrates the information sufficient to address this issue and there is no evidence to indicate that the Veteran experiences functional impairment during periods of flare-ups or otherwise that is comparable to unfavorable ankylosis, which is defined by the VA rating schedule as a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension. A remand is not required. See Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict compliance with the terms of a remand request, is required). Finally, neither the evidence nor the Veteran has reported a material change in the severity of the service-connected disability since he was last examined in March 2012. 38 C.F.R. § 3.327(a). Accordingly, the Board finds that VA's duty to assist the Veteran has been met.
There is no indication in the record that any additional evidence, relevant to the issue adjudicated in this decision, is available and not part of the claims folder. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009).
Other considerations
In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c) (2) requires that the Veterans Law Judge (VLJ) who conducts a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. During the hearing, the Veteran was assisted by his representative from the Disabled American Veterans. The undersigned VLJ explained the issue on appeal and the Veteran was questioned regarding the manifestations of his service-connected disability. The VLJ also asked the Veteran if he received private treatment and/or VA medical treatment. See hearing transcript, pg. 13. The Veteran responded that he received treatment at the Dayton and Chillicothe VAMCs. The identified records are associated with the claims folder and updated VA medical treatment records were obtained in connection with the Board's October 2011 remand. The Board finds that, consistent with Bryant, id., the undersigned VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c) (2).
Legal Criteria-Rating Disabilities
Disability ratings are determined by the application of the VA's Schedule for Rating Disabilities (Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (2014). Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21 (2014); see also Mauerhan v. Principi, 16 Vet. App. 436 (2002).
Further, a disability rating may require re-evaluation in accordance with changes in a Veteran's condition. It is thus essential in determining the level of current impairment that the disability is considered in the context of the entire recorded history. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505, 519 (2007).
The issue comes before the Board on appeal of an initial rating assignment by a June 2004 rating decision. Service connection has been established for the service-connected low back disability effective from October 8, 2003. Effective September 26, 2003, revisions to the VA rating schedule established a General Rating Formula for Diseases and Injuries of the Spine. See 68 Fed. Reg. 166, 51,454-51,458 (August 27, 2003). As service connection was established for the disability at issue after the effective date of the revisions to the diagnostic code, the rating criteria made effective September 26, 2003, are applicable to the issue on appeal.
The Veteran's lumbosacral strain with degenerative joint and disc disease is currently rated as 20 percent disabling under Diagnostic Code 5242. The General Rating Formula for Diseases and Injuries of the Spine provides for disability ratings under Diagnostic Codes 5235 to 5243, unless the disability rated under Code 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, for diseases and injuries of the spine, with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease.
Under the General Rating Formula for Diseases and Injuries of the Spine, relevant ratings related to the thoracolumbar spine are assigned as follows:
A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.
A 40 percent rating is warranted for forward flexion of the thoracolumbar spine 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine.
A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine.
A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a.
Note (1) to the rating formula specifies that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate diagnostic code.
Note (2): (See also Plate V.) For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the cervical spine is 340 degrees and of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion.
Note (3): In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2).
Note (4): Round each range of motion measurement to the nearest five degrees.
Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis.
Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability.
Intervertebral disc syndrome (preoperatively or postoperatively) may be evaluated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined. See 38 C.F.R. § 4.25 (combined ratings table).
The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes provides that incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months warrants a 20 percent rating. A 40 percent rating is warranted when there are incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent rating is warranted when there are incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a.
Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage and the functional loss with respect to all of these elements. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated innervation, or other pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. Pain on movement, swelling, deformity or atrophy of disuse as well as instability of station, disturbance of locomotion, interference with sitting, standing and weight bearing are relevant considerations for determination of joint disabilities. 38 C.F.R. § 4.45. Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59.
Analysis
In adjudicating the issue below, the Board has reviewed all of the evidence in the Veteran's claims folder. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that all the evidence submitted or obtained be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims folder shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).
During his February 2006 hearing before a DRO, the Veteran testified that there is never a time when he does not have pain. He stated that he received four or five shots for his back in the past year. He testified that during the last couple of years, he visited the emergency room four or five times. During his August 2011 video conference hearing before the undersigned VLJ, he testified that he cannot stand up straight and has to receive injections from the VA hospital. His representative remarked that the Veteran had to get up and stretch every twenty to thirty minutes. The Veteran stated that his back goes out but the pain stays with him all the time. The Veteran's friend, E.B., testified that she noticed that he had to stop and rest because his back and legs hurt. She stated that he hurts all the time.
In an April 2010 statement, the Veteran explained that he was experiencing more discomfort and pain in his spine and wanted a higher rating of 40 percent or 50 percent.
The VA medical treatment records reflect complaints of pain, stiffness, decreased range of motion, and the effects of pain on appetite, work, sleep, sexual relations, fatigue, and concentration. VA treatment records dated in April 2005, June 2005, and July 2006 show notations of full range of motion of upper extremities, lower extremities and spine. An April 2005 VA treatment record shows that the Veteran reported pain as 8 out of 10. He was tender over his lumbar region. He was noted to have good range of motion, but painful. A March 2009 note shows that the Veteran arrived via ambulance. He reported low back pain. He was given an injection of Toradol. A May 2009 note shows that the Veteran reported pain and had decreased range of motion of the spine. A December 2009 urgent care note shows that the Veteran's range of motion was painful and limited. A December 16, 2011 urgent care note shows that the Veteran complained of worsening back pain. His spine was tender and he could not climb on table. A December 2011 urgent care note shows that the Veteran complained of back pain and exhibited forward flexion to 110 degrees. It was noted that he was tender to palpation over left paravertebral muscle spasms. He was given a Toradol shot. A January 2012 urgent care note shows that the Veteran complained of back pain and forward flexion was 90 degrees. The assessment was listed as possible muscle spasm; given Toradol shot. A June 2012 urgent care note shows that the Veteran complained of back pain. There was palpable discomfort in the left lower back and he had good range of motion (ROM) getting onto and off the exam table. He was given an injection of Toradol.
While prior to the date of service connection in October 2003, a VA clinical summary dated September 2002 noted that the Veteran injured his spine in 1972 and complained of pain and stiffness in his lumbar spine. He reported occasional numbness. On range of motion testing, the spine exhibited 70 degrees of flexion without pain and 90 degrees with pain. It affected his daily life in that he had increased pain and decreased activity secondary to the pain. The impression listed diagnoses of degenerative changes of the lumbar spine, spondylolisthesis of the lumbar spine, and herniated nucleus pulposes of the lumbar spine.
The Veteran was provided a VA medical examination in October 2006. The Veteran stated that he complained of pain in the lower back, which was "24/7." There was no radiation of the pain. He reported problems with prolonged sitting. For example, he drove his car to Jackson, Ohio, which was a two hour drive, and had to stop and get out and move around for a while during the drive. He stated that he was unable to sit for longer than an hour and unable to stand more for than an hour. This interfered with sleeping and woke him up. He rated the back pain as an 8/10 on a good day, and with a flare, it was "off the Richter scale". When this occurred, he had to lie on the couch with a pillow behind his back and a pillow behind his knees. He reported wearing a back brace periodically. He did not have any problems with his bladder or bowels due to his back. He had flares one to two times per month and each flare-up lasted a couple of days. He stated that when that happens, he comes for an injection. He described low back pain with walking. He noted that when he gets up from a sitting position, he gets pain radiating down the medial aspects of both legs to the feet. On examination, the Veteran's gait was antalgic. Examination of the lumbosacral spine showed no paraspinal muscle spasm. He complained of tenderness to palpation over the SI joint areas. There appeared to be increased kyphotic curve. Range of motion of the lumbosacral spine showed forward flexion with pain at 15 degrees and he was able to complete to 35 degrees. Backward extension to 20 degrees with pain at endpoint, left lateral flexion had pain at 10 degrees and he was able to complete to 20 degrees. Right lateral flexion was 20 degrees with pain at endpoint. Rotation to left and right was to 15 degrees bilaterally with pain to the endpoints and complained of his legs quivering during range of motion activities. As he complained of significant pain and instability of legs with range of motion activities, he was not retested after repetitive activities for the Deluca criteria.
The Veteran was provided a VA medical examination in September 2008. The claims folder was not requested. He reported that he retired from his position as a sign painter in 1991 secondary to complaints of back pain. He used a cane approximately two to three times per week. He used the cane for approximately 20 years. He was not unsteady on his feet on a daily basis, but had a fall two times in the last month. He walked with an antalgic gait. The Veteran reported that his walking distance was limited to approximately 20 to 30 yards secondary to complaints of back pain and bilateral leg pain. Sitting time and ability was not significantly limited. Standing time was somewhat limited in that he needed a cane to steady himself and maintain a standing position for any length of time. He remained independent in activities of daily living. He reported that his main complaint revolved around pain with associated complaints of weakness and stiffness. He reported that he takes medication for symptomatic relief of symptoms and described difficulty sleeping secondary to pain. He reported pain as a 7 to 8 out of 10 in intensity. He reported a history of flare-ups in that he had been hospitalized four to five times in the last 12 months secondary to pain. During a flare-up, he reported decreased range of motion and increased pain. His pain was worsened by cold, wet weather, and lying supine. On examination, the Veteran walked with an antalgic gait. There was discomfort with palpation in the midline of the lumbar spine. Range of motion testing demonstrated flexion of 0 to 80 degrees, extension 0 to 20 degrees, lateral bending 0 to 25 bilaterally, and rotation 0 to 25 bilaterally. Concerning repetitive testing, the examiner stated that there did not appear to be any significant increasing component of pain, fatigue, weakness, lack of endurance, or incoordination with repetitive motion testing of the lumbar spine today.
The Veteran was provided a VA medical examination in May 2010. The claims folder was reviewed. The Veteran reported that he has not worked since 1991. The Veteran stated that his low back pain was constant. Walking more than one block, standing more than 20 minutes, climbing up and down the stairs, tended to aggravate his pain in the low back. He felt some relief with hot showers and a TENS unit, which he was prescribed recently. He had no recent admission due to back pain, no surgery to his back, no repeat trauma, and denied any acute flares saying that the back was almost constant. He has not had incapacitating episodes of back pain making him bedridden in the last 12 months. He denied any bowel or bladder complaint. He sometimes used a cane because he had some balance issues. He did not use crutches, walker, or a back brace. He can walk a block for about 20 minutes before his back or knee pain makes it troublesome. On examination, his gait was antalgic. On examination, lumbosacral area was tender to deep palpation at L4-5 level. Forward flexion was restricted to 80 degrees, extension to 20 degrees, lateral flexion to 25 degrees, and lateral rotation to 25 degrees, secondary to pain in the lumbosacral area, radiating to both hips and to the upper legs. He was able to do repetitive motions at the spine, noticed increasing amount of pain, but showed no fatigability, lack of endurance, or incoordination at lumbosacral spine. SLR bilaterally was decreased to 70 degrees, secondary to pain in the lumbosacral area. The examiner noted that the Veteran had no activities of daily living (ADL) issues as he currently did not work.
The Veteran was provided a VA medical examination in March 2012. He reported that he can walk one block without any assistive device. He stated that he used a cane occasionally and used a cane during trips to the grocery store. He stated that he could sit for approximately 20 minutes before needing to stretch. He stated that he can drive for approximately 50 miles before needing to stop his car. The Veteran had no problems with activities of daily living. Concerning flare-ups, the Veteran reported that his flare-ups impacted him because he stated that a "few times a month" he is totally incapacitated. He stated that he had a friend who helps out during this period and the incapacitation lasts a few days. He has gone to the Dayton VAMC to receive Toradol injections. He has had to make about ten visits to the urgent care with severe back pain. He stated that he takes Gabapentin and Methacarbamol for his back pain. Range of motion testing revealed the following: forward flexion ended at 80 degrees with objective evidence of pain beginning at 70 degrees, extension ended at 25 degrees with painful motion beginning at 25 degrees, right lateral flexion ended at 30 degrees or greater with painful motion beginning at 30 degrees or greater, left lateral flexion ended at 30 degrees or greater with painful motion beginning at 30 degrees or greater, right lateral rotation ended at 30 degrees or greater with painful motion beginning at 30 degrees or greater, and left lateral rotation ended at 30 degrees or greater and painful motion beginning at 30 degrees or greater. The Veteran was able to perform repetitive testing and the findings were as follows: forward flexion ended at 70 degrees, extension ended at 20 degrees, right lateral flexion ended at 30 degrees or greater, left lateral flexion ended at 30 degrees or greater, right lateral rotation ended at 30 degrees or greater, and left lateral rotation ended at 30 degrees or greater. The examiner indicated that the Veteran had additional limitation in range of motion following repetitive-use testing and that the Veteran had functional loss and/or impairment of the back. The examiner noted the contributing factors of: less movement than normal, weakened movement, excess fatigability, and pain on movement. The examiner stated that the Veteran had IVDS and experienced incapacitating episodes over the past twelve months. The examiner indicated a total duration of at least four weeks but less than six weeks. Concerning assistive devices, the Veteran used a brace occasionally, a cane occasionally, and a walker occasionally. He reported that he used a walker for ambulating over few blocks and used a back brace during his flare-ups. The examiner remarked that the Veteran had some decrease in functional capacity with forward flexion on repetitive testing. The Veteran did not have ankylosis. The Veteran had increased weakness with repetitive testing. The examiner was unable to provide an opinion on limitation of functional ability during flare-up or repetitive use without mere speculation.
In a June 2012 addendum to the March 2012 VA examination report, the examiner stated that the Veteran has not had physician prescribed bed rest. The Veteran had stated that he had not seen a physician during his severe back pain and was on bed rest per his own, without being evaluated by a physician. The examiner noted that the Veteran had radiculopathy, but had not been diagnosed with diabetic peripheral neuropathy.
According to the rating criteria, to warrant a rating in excess of 20 percent, there must be evidence of forward flexion of the thoracolumbar spine 30 degrees or less, or favorable ankylosis. In this case, the VA examination reports, private records, and VA medical treatment records do not reflect findings of 30 degrees or less or ankylosis. While the October 2006 VA examination report noted that the Veteran's pain began during 15 degrees of flexion, he was able to flex his spine to 35 degrees.
However, the Board has also considered whether a rating in excess of 20 percent would be warranted on the basis of additional functional impairment and loss. 38 C.F.R. §§ 4.40, 4.45, 4.59, DeLuca v. Brown, supra. The Veteran has complained of constant pain, limited range of motion, stiffness, fatigue, weakness, flare-ups consisting of trips to the emergency room for Tramadol injections, and incapacitation. For instance, the October 2006 VA examination report noted that the Veteran complained of significant pain and instability of legs with range of motion activities and was not retested after repetitive activities for the Deluca criteria. Review of the VA medical treatment records show that the Veteran has been seen at urgent care many times for his low back pain. While some of the VA medical treatment records show flexion to 90 degrees during a self-described flare-up, other VA medical treatment records noted extreme limitation in terms of range of motion. For instance, an April 2012 VA medical treatment record indicated "very poor" tolerance to all movements. Other records indicated that the Veteran could not get up on the examination table due to pain. The Board finds the Veteran's repeated visits to the VAMC for treatment during his flare-ups and his statements regarding his functional incapacity and during such periods to be competent and credible. Resolving any doubt in favor of the Veteran, the Board finds that a higher initial rating of 40 percent is warranted for the entire appeal period. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.
However, a rating in excess of 40 percent is not warranted. There is no evidence of unfavorable ankylosis of the entire thoracolumbar spine or unfavorable ankylosis of the entire spine to warrant a higher rating under the schedular criteria. Even considering the Veteran's functional impairment and loss, such is not to a degree to be comparable to unfavorable ankylosis. In fact, the 40 percent rating already considers assignment for favorable ankylosis. Ankylosis is defined as immobility and consolidation of a joint due to disease, injury, or surgical procedure. See Lewis v. Derwinski, 3 Vet. App. 259 (1992). Again, the Board already considered functional impairment in assigning a higher rating of 40 percent even though the evidence does not even demonstrate flexion findings of 30 degrees or less. As a result, a rating in excess of 40 percent is not warranted.
Concerning Diagnostic Code 5243, the Board recognizes that the Veteran has contended that he experiences incapacitation due to his service-connected lumbosacral strain with degenerative joint and disc disease. The March 2012 VA medical examination report confirms a diagnosis of intervertebral disc syndrome (IVDS). The March 2012 VA medical examination report shows that the Veteran reported that a few times a month, he is totally incapacitated. He reported that the incapacitation lasts a few days and must stay in his bed. The March 2012 VA medical examination report indicated that the Veteran had incapacitating episodes over the past twelve months. The examiner stated that the episodes had a total duration of at least four weeks but less than six weeks. As noted above, Diagnostic Code 5243 allows for the assignment of a rating of 40 percent for incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. However, a rating of 40 percent or higher is not warranted. In a June 2012 addendum to the March 2012 VA examination report, the examiner noted that the Veteran did not have incapacitating episodes as the Veteran did not see a physician and was not prescribed bed rest by a physician. An incapacitating episode is defined as "a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician." See 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. The Veteran is not considered competent to state that he experienced incapacitating episodes due to IVDS as he has not been shown to have the medical expertise and knowledge to do so. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). As a result, an initial rating in excess of 40 percent is not warranted.
In adjudicating a claim, the competence and credibility of the Veteran and other lay persons must be considered. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). The Veteran is competent to give evidence about what he observes or experiences. For example, he is competent to report that he experiences certain symptoms, such as pain, and he is credible in this regard. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). In addition, the Veteran submitted lay statements attesting to his pain. However, the statements have been considered and the Board finds that the statements are outweighed by the clinical findings. The Board assigns greater probative value to the findings in the VA examination reports and treatment records that were recorded following physical examinations of the Veteran. These are more probative than his assertions requesting a higher rating.
The Board observes that the most recent VA examination report reflects diagnoses of radiculopathy of the left lower extremity and radiculopathy of the right lower extremity. An August 2013 rating decision granted entitlement to service connection for radiculopathy of the left lower extremity and granted entitlement to service connection for radiculopathy of the right lower extremity, with a 10 percent initial rating assigned for each. The Veteran did not appeal the initial ratings assigned, and they are not before the Board at this time. The record does not demonstrate that the Veteran suffers from additional neurological deficiency so as to warrant an additonal separate disability rating under the diagnostic codes pertinent to rating neurological disorders. See Bierman v. Brown, 6 Vet. App. 125, 129-132 (1994).
In sum, there is no identifiable period that would warrant a rating in excess of 40 percent and; therefore, staged ratings are not appropriate in this case. See Fenderson, supra. In light of the above, a preponderance of the evidence is against the claim for a rating in excess of 40 percent for service-connected lumbosacral strain with degenerative joint and disc disease. The benefit-of-the-doubt doctrine does not apply and the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.
Extra-schedular consideration
The Board has considered referral for extra-schedular consideration. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993).
An extra-schedular rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1) (2014). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. See Fanning v. Brown, 4 Vet. App. 225, 229 (1993).
Under Thun v. Peake, 22 Vet. App. 111 (2008), there is a three-step inquiry for determining whether a Veteran is entitled to an extra-schedular rating. First, the Board must first determine whether the evidence presents such an exceptional disability picture that the available schedular ratings for that service-connected disability are inadequate. Second, if the schedular rating does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extra-schedular rating.
With respect to the first prong in Thun, the Board finds that the rating criteria reasonably describe the Veteran's symptomatology, which includes pain with and without activity, and restricted range of motion. The rating criteria, including Diagnostic Codes 5235-5243, specifically provide for disability ratings based on pain and loss of motion in the thoracolumbar spine, including due to pain and other orthopedic factors. See 38 C.F.R. §§ 4.21, 4.40, 4.45, 4.59; see also DeLuca at 206. The rating assigned for the thoracolumbar spine has been assigned based on recognition of the Veteran's functional impairment and loss during his periods of flare-ups. There are no other symptoms mentioned in association with his disability that is left unrated. Again, the Veteran was separately rated for radiculopathy of the right lower extremity and radiculopathy of the left lower extremity. The Board has considered ratings under alternate schedular rating criteria as discussed above. The Veteran does not have symptomatology not already encompassed in the Rating Schedule and the assigned schedular rating is adequate. Referral for extra-schedular consideration under 38 C.F.R. § 3.321(b)(1) is not warranted.
Finally, under Johnson v. McDonald, 2013-7104, 2014 WL 3562218 (Fed. Cir. Aug. 6, 2014), a Veteran may be awarded an extra-schedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where the evaluation of the individual conditions fails to capture all the service-connected disabilities experienced. However, in this case, after applying the benefit of the doubt under Mittleider v. West, 11 Vet. App. 181 (1998), there are no additional service-connected disabilities that have not been attributed to a specific service-connected condition. Accordingly, this is not an exceptional circumstance in which extra-schedular consideration may be required to compensate the Veteran for a disability that can be attributed only to the combined effect of multiple conditions.
ORDER
Entitlement to an initial rating of 40 percent, but no higher, for lumbosacral strain with degenerative joint and disc disease is granted.
REMAND
Concerning the issue of entitlement to service connection for a left knee disability, the Board's October 2011 remand requested that the Veteran be scheduled for a VA examination. The VA examiner was asked to address whether it is "at least as likely as not" that a left knee disability was proximately due to or the result of his service-connected degenerative joint disease of the right knee and/or lumbosacral strain with degenerative joint and disc disease; or aggravated by his service-connected degenerative joint disease of the right knee and/or lumbosacral strain with degenerative joint and disc disease.
The Veteran was provided a VA medical examination in March 2012. A March 2012 x-ray indicated that joint space and alignment were normal throughout both knees and there were "bilateral suprapatellar enthesophytes" larger on the left. The impression listed "suprapatellar enthesophyte seen bilaterally" and otherwise unremarkable knees. The examiner stated that the Veteran had a normal left knee exam and x-rays. The examiner opined that the claimed condition was "less likely than not" proximately due to or the result of the Veteran's service connected condition. The rationale was that the Veteran had a normal left knee examination and function on interview. However, the May 2010 VA examiner stated that the X-rays reflected "left knee mild arthritis." Specifically, the left knee x-ray completed in May 2010 indicated spurring on the left knee. While the Board notes that there is conflicting evidence related to whether the Veteran has a disability, the Board is reluctant to find that the Veteran does not have a current disability. As a result, the March 2012 VA examiner's opinion is not adequate as the rationale for the negative nexus opinion is that the Veteran does not have a current left knee disability. See Barr, supra. A new medical opinion is required.
Concerning the issue of entitlement to a TDIU, the record contains opinions as to whether some of the Veteran's service-connected disabilities preclude employment. 38 C.F.R. § 4.16(a) (2014). The March 2012 VA examiner stated that the Veteran's spine disability did not impact his ability to work. The examiner stated that the Veteran should be able to perform sedentary work and mild ambulatory work, but did not appear to take into account the Veteran's previous work experience and education. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) ("It is the factually accurate, fully articulated, sound reasoning for the conclusion . . . that contributes probative value to a medical opinion."). The March 2012 VA examiner did not provide an opinion related to the Veteran's now service-connected radiculopathy of the right lower extremity and radiculopathy of the left lower extremity and only responded "no" when asked if the hip disability impacted the Veteran's ability to work. In light of the above, the Board finds that a new VA opinion is warranted to determine whether the Veteran is able to secure and follow a substantially gainful occupation due to his service-connected disabilities. 38 C.F.R. § 4.16. In requesting such an opinion, the Board recognizes that a "combined-effects medical examination report or opinion" is not required to adjudicate a TDIU claim. See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013); Floore v. Shinseki, 26 Vet. App. 376 (2013). The ultimate responsibility for a TDIU determination is a factual rather than a medical question and is an adjudicative determination made by the Board or the AOJ. Geib, 733 F.3d at 1354 (citing 38 C.F.R. § 4.16(a)). However, in this case, the Board finds that an opinion discussing the combined effects of all service-connected disabilities would be helpful in adjudicating the issue.
Accordingly, the issues are REMANDED for the following action:
1. Return the claims folder to the March 2012 VA examiner, or, to another suitably qualified examiner to provide an addendum opinion as to the nature and etiology of any left knee disability. The claims folder must be made available for review and the examiner must note that such a review was conducted. The examiner must note that the Board considers the Veteran to have a current left knee disability. See May 2010 VA medical examination report.
a. Is it at least as likely as not (50 percent probability or more) that any left knee disability is related to active service.
b. Is it at least as likely as not (50 percent probability or more) that any left knee disability is proximately due to or the result of any of the Veteran's service-connected disabilities (lumbosacral strain with degenerative joint and disc disease, right knee degenerative joint disease, status post injury, radiculopathy of the right lower extremity, radiculopathy of the left lower extremity, left hip degenerative joint disease, and right hip degenerative joint disease).
c. Is it at least as likely as not (50 percent probability or more) that any left knee disability was aggravated by any of the Veteran's service-connected disabilities.
Aggravation is defined as a permanent worsening beyond the natural progression of the disease or disability.
Rationale must be provided for the opinion proffered.
2. Request a VA medical opinion to determine the functional impact of all of the Veteran's service-connected disabilities, considered in combination, on his ability to work. The Veteran's claims folder must be made available to the examiner for review and a notation that the claims folder was reviewed must be included.
The examiner is asked to comment on the functional impact of all of the Veteran's service-connected disabilities on his ability to work, consistent with his educational and occupational experience. The examiner must consider that the Veteran reported finishing high school and last worked as a painter in 1991.
The examiner is asked to opine as to whether it is at least as likely as not (50 percent probability or more) that the Veteran is unable to secure or follow a substantially gainful occupation due to his service-connected disabilities in combination.
Rationale must be provided for the opinion proffered.
3. After completing the above development and any other development deemed necessary, readjudicate the issues on appeal. If any benefit sought remains denied, provide a supplemental statement of the case to the Veteran and his representative, and allow for an adequate period of time for response. Thereafter, return the appeal to the Board for review.
The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court
of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).
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U. R. POWELL
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs